The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

Monday, August 30, 2010

Privacy interests to be considered in publication ban

A long-time friend of this blog just recently sent me a link to a new decision from the British Columbia Supreme Court (R. v. Pickton, 2010 BCSC 1198 ), in which the Court was asked to issue a publication ban to protect the identity of an individual witness for reasons of privacy.

The individual applicant had previously been a sex worker and drug addict. In 1997, police laid a charge against Robert Pickton, alleging that he had attempted to murder her but the prosecution was discontinued. Her evidence is relevant in the current proceeding against Robert Pickton. No publication ban was entered at the time of the 1997 prosecution.

Since then, the applicant has left the sex trade and is no longer a drug user. She is married, has kids and appears to be living a normal life in the lower mainland of British Columbia.

She brought an application to prevent her name from being disclosed during the current prosecution of Pickton. The application was strongly opposed by the media.

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

In this case, the media argued that the applicant was only "about embarrassment and nothing more". They suggested that her interests could be protected by changing her name.

Justice Williams did not agree:

[20] I am satisfied that the Applicant will suffer a significant breach of privacy if her name is not protected by a publication ban and that this impacts on her personal security and that of her family. The privacy interests of the Applicant are a legitimate aspect of the proper administration of justice and must be considered in the analysis. The Respondents’ submission that the Applicant’s privacy interests are insufficient seems contrary to a number of authorities including the Criminal Code provisions which deal with publication restrictions for victims and witnesses. These provisions expressly recognize the privacy interests of the victims and witnesses. The concept of dignity springs to mind. Although it is nowhere mentioned in the subsection, I cannot believe that it is not a factor worthy of some consideration in the analysis.

Given that the media are free to report on all the details of her previous encounter with Pickton and of any evidence she has given more recently, but without her name, the balance tilted in favour of protecting her identity.

[28] The Applicant, having participated in the proceedings against Mr. Pickton requests that she be able to live in her community free from the public scrutiny that will arise if her name and identity are published. She does not seek to prevent the details of her story from being published. In my view, granting the Applicant’s request achieves the proper balance that the Dagenais-Mentuk framework requires between the open court principle and the proper administration of justice. The temporary publication ban which has thus far protected the Applicant has been shown to minimally impair the ability of the Respondents to perform their function. The publication ban respects the open court principle and allows the public to scrutinize this proceeding. The publication ban protects the proper administration of justice because it permits the Applicant’s story to be told in a way that illustrates that the justice system respects, where possible, the privacy interests of victims and witnesses of crime.

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